Madhya Pradesh High Court
Kalil vs The State Of Madhya Pradesh on 24 March, 2017
1
Cr.A. No.362/2016
High Court of Madhya Pradesh: Bench at Indore
Single Bench: Hon'ble Shri Justice Ved Prakash Sharma
Cr.A. No.362/2016
Khalil
Versus
State of M.P.
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Shri Vikas Gupta, learned counsel for the appellant. Shri Himanshu Joshi, learned Panel Lawyer for the respondent/State
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J UD G E M E N T (Passed on 24th March, 2017) .
This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 ( for short 'The Code') ,is directed against judgement and order dated 04/12/2015, passed by learned Sessions Judge, Neemuch in S.T. No. 45/2015, whereby appellant Khalil has been convicted under Section 393 and 294 of the IPC and has respectively, been sentenced to undergo 3 years and two months R.I., and further directed to pay fine of Rs.1,000/- under Section 393 of IPC.
02. The prosecution story, briefly stated, is that on 13/03/2015, at around 4:00 p.m. appellant Khalil went to the Saree Shop of complainant Mohit Goyal (P.W.1) situated at Naya Bazar Road, Neemuch, hurled abuses upon him and further, at the point of knife, illegally, demanded Rs.1,000/- from him. As per prosecution in the meantime, Madanlal Dhakkad (P.W.2) and Yashwant Mali (P.W.3) arrived at the 2 Cr.A. No.362/2016 place of occurrence and thereafter the appellant went away threatening Mohit Goyal (P.W. 1). Same day around 7:00 p.m. First Information Report Ex.P/1 was lodged by Mohit Goyal (P.W.1) against the appellant at Police Station Neemuch Cant, on the basis of which a case under Section 294,327,393 and 506 of IPC was registered against him. Investigation ensued. Ms. Sonal Sisodiya (P.W.6), the then Sub-Inspector, Police- Station Neemuch Cant, during the course of investigation, visited the site of occurrence and prepared spot map Ex.P/2. The appellant was arrested on 16th March, 2015, vide arrest memo Ex.P/3. On the basis of disclosure, said to have been made by him on 16th March, 2015 vide Ex.P/4, a knife, as per Ex.P/5, was seized from his possession. The witnesses were interrogated.
03. After usual investigation a charge-sheet was filed before the Court of competent Magistrate. In due course, the matter was committed to the Court of Sessions. Charge for offences under Sections 294,327,393 and 506 of IPC were framed against the appellant who abjured guilt and claimed to be tried.
04. The prosecution in order to prove its case examined as many as six witnesses before the learned trial Court including complainant Mohit Goyal (P.W.1). Madanlal Dhakkad (P.W.2) and Yashwant Mali (P.W.3) are said to be eye wintnesses, while Sonal Sisodiya (P.W.6) is the Investigation Officer.
05. Incriminating circumstances appearing against the appellant in the prosecution evidence were brought to his notice during his examination under Section 313 of 'The 3 Cr.A. No.362/2016 Code'. He denied his involvement in the alleged incident and pleaded that he has been falsely implicated and that on the date of alleged incident, he was away from the town and was performing duty as Khalasi. The learned Sessions Judge, on the basis of evidence adduced before the Court, vide the impugned judgment, convicted and sentenced the appellant under Section 393 and 294 of IPC, as stated herein-above.
06. The impugned Judgement has been challenged in this appeal on the ground that learned trial Court has seriously erred in relying upon the testimony of Mohit Goyal (P.W.1), Madanlal Dhakkad (P.W.2) and Yashwant Mali (P.W.3), as the same suffers from serious anomalies. It is submitted by the learned counsel for the appellant that the finding of guilt recorded by learned trial Court is based on surmises and conjectures. It is also contended that the appellant has been falsely implicated, and that at the time of alleged incident, he was working as labourer in the market and that C.C.T.V. footage which could have been best piece of evidence were not collected during during investigation, hence, conviction deserves to be set aside. Lastly it is submitted that even if the prosecution case is accepted as such an offence under Section 393 of IPC is not made out and that at the most, the case will fall under Section 385 of the IPC.
07. Per contra, it is submitted by the learned Public Prosecutor that the finding of guilt is based on proper appreciation of evidence. It is further submitted that there was no motive on the part of the complainant to falsely implicate the appellant, therefore, the testimony of Mohit Goyal (P.W. 1), which stands corroborated by testimony of independent 4 Cr.A. No.362/2016 witnesses, deserved to be accepted, therefore, the appeal is liable to be dismissed.
08. Heard learned counsel for the parties and perused the record.
09. At the very outset, it is submitted by the learned counsel for the petitioner that he is not challenging the conviction/sentence for offence under Section 294 of IPC as the appellant has already suffered the sentence imposed against in this regard. Therefore, it is required to be seen whether the conviction for offence under Section 393 of IPC is in accordance with law and evidence on record ?
10. The testimony of complainant-Mohit Goyal (P.W.1) is clear and specific on the points that on 13/03/2015, at around 4:00 p.m., appellant Khalil came to his shop and demanded Rs.1,000/- from him as 'Hafta Wasooli'. This witness has further deposed that on refusal to pay the money, the appellant hurled abuses upon him and further threatened him on the point of knife that he will have to pay the money. As per prosecution, in the meanwhile, Madanlal Dhakkad (P.W.2) and Yashwant Mali (P.W.3) arrived at the place of occurrence and thereafter the appellant after threatening Mohit Goyal (P.W.1) left the spot. As per Mohit Goyal (P.W. 1) he lodged FIR Ex.P/1 in this regard with Police. Despite being subjected to searching cross-examination nothing could be elicited by defense to discredit Mohit Goyal (P.W.1). This witness has denied that he has falsely implicated the appellant on account of past enmity. In fact, the suggestion made to this witness in this regard is quite vague. The appellant has not stated as to why this witness was having enmity with him. In such 5 Cr.A. No.362/2016 premises there is nothing to disbelieve the testimony of Mohit Goyal (P.W.1).
11. M.L. Dhakkad (P.W.2) and Yashwant Mali (P.W.3), who, as deposed by Mohit Goyal (P.W.1), reached at the time of occurrence, have supported the version putforth by Mohit Goyal (P.W.1). Again there is nothing in their testimony to indicate that they have any motive to falsely implicate the appellant. On all material points these two witnesses corroborating the testimony of Mohit Goyal (P.W.1) have stood the test of cross-examination.
12. The testimony of Mohit Goyal (P.W.1) further stands corroborated by (Ex.P/1) FIR, which was lodged by him within 3 hrs. of the incident at Police-Station Neemuch Cant and is corroborative piece of evidence under Section 157 of the Evidence Act.
13. From the aforesaid testimony which is worthy of credence, it is found proved beyond reasonable doubt that on the date of occurrence the appellant went to the shop of complainant-Mohit Goyal (P.W.1) and demanded from him Rs.1,000 on the point of knife.
14. In the aforesaid premises the next question would be whether the facts found proved in the present case will constitute an offence under Section 385 of IPC as asserted by the learned counsel for the petitioner or under Section 393 of the IPC as pointed out by the learned counsel for the State. In order to appreciate the issue it is apposite to refer to Section 385, 390 and 393 of IPC, which are as under:
6 Cr.A. No.362/2016"S.385. Putting person in fear of injury in order to commit extortion.-Whoever, in order to the committing of exertion, puts any person in fear, or attempts to put any person in fear, of any injury, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
S.390. In all robbery there is either theft or extortion. Theft is "robbery" if, in order to the commiting of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
S.393. Attempt to commit robbery.- Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
15. From the aforesaid provisions it can be easily discerned that if the offender at the time of committing extortion or for that matter attempting to commit extortion, is in the presence of the person put in fear then offence will fall within Section 393 of IPC, however, if the offender at the time of committing or attempting to commit extortion is not in the presence of person who was put in fear then offence will fall within Section 385 of the IPC.
16. In the instant case the appellant in presence of Madanlal Dhakkad (P.W.2) and Yashwant Mali (P.W.3) attempted extortion of Rs.1,000/- from complainant Mohit Goyal (P.W.1) by putting him under instant fear or hurt. Therefore, it cannot be said that the Appellate Court has 7 Cr.A. No.362/2016 committed any error in convicting the appellant for offence under Section 393 of IPC, hence, no fault is found with the finding of conviction recorded against the appellant for offence under Section 393 of the IPC.
17. As regards sentence, considering the facts and circumstances of the case including the fact that neither any injury was caused nor any money was extorted, it would be appropriate to reasonably reduce the custodial (jail) sentence of 7 years R.I., which in the facts and circumstances of the case appears to be on higher side. Considering totality of the facts of the case, sentence of 3 years R.I. with a fine of Rs.5,000/-, in default further R.I. of 3 months will meet the ends of justice.
18. Accordingly, conviction recorded against the appellant for offence under Section 393 of the IPC is hereby maintained while sentence is reduced from 7 years to 3 years R.I. with fine of Rs.5000/-and in default of payment of fine further R.I. of 3 months R.I. With the aforesaid this appeal stands partly allowed. Certified copy as per rules.
(Ved Prakash Sharma) Judge skt